I dont think they should be permitted to appeal at this point. I also do not see how they can think this motion will be granted, as is not this motion directed to the same exact Judge that upon his own motion asked the parties to brief the question as to if the Court had committed an error of law in the Jury instructions.

My understanding is the FIRST place that a Court looks in deciding the meaning of a law is the EXACT WORDS of the law. The law clearly says "Copies or Phonorecords" Since the instructions allowed a finding of fault without a finding of "Copies or Phonorecords", it clearly was in error.

I also question WHY they want a faster appeal to the 8th Circuit. Do they not see the problem they will have if that court were to Promptly strike down their case? That decision would be cited by every Defendant, and shut down their lawsuit machine everywhere. They also might decide other facts against them as well. As an example, the term "Phonorecords" at the time of the laws enactment clearly did not include Compact Disks, as such items were not yet in use at that time.

The worst case for the Plaintiff is that the 8th Circuit rules the law does not cover the conduct complained of. "Copies or Phonorecords" could be easily be inferred by a Judge to require a physical object containing the song. Since there are no such physical objects in this case, this could be a result.P2P networks of the bandwidth required for filesharing works of this size did not exist for general use by the public at the time the law was passed. Also, IPv4, the means of file transfer alleged in this case did not exist until 1981, a few years after the law was passed.

Maybe with all the downsides the Plaintiff may strike, maybe I should be in favor of letting them appeal now. However, I think the total case is the only true thing that should be Appealable. Therefore, I continue to say let them wait for the entire case to be retried before being appealed.

I'm not a lawyer, and I see the sense in generally having everything appealed at the end of trial -- but it seems to me that orders granting a new trial are better reviewed before the new trial starts rather than after.

If they don't successfully appeal to the 8th Circuit Court of Appeals a second trial is granted. Here the RIAA, with new jury instructions in place, better legal representation for the Defendant, a new jury enpaneled, and their courtroom legal strategy now well understood, faces a much better chance of defeat. They've already lost their only courtroom victory and now face the distinct possibility of their only courtroom appearance becoming a defeat. That is certainly worse than trying to convince an Appeals Court that Distribution doesn't require Actual Distribution since Actual Distribution is so hard to prove. As happened in another wrongly decided case somewhat related, they can hope for a ruling best classified as being "Motivated by sympathy for the Plaintiff."

Or that the Defendant can't afford to continue the fight at the Appeals Court level and has to throw in the towel.

Lior, they're trying to appeal the judge who said that a manifest error of law was committed in the trial and that trial is now wiped off of the books. They're going to the Appeals Court to have it say, "No it wasn't (a manifest error)".

Although tactically I think it'd be best if the RIAA's appeal were denied, it might make some legal sense. Their memorandum is correct that the contention is over a point of law (the "making available" theory) that the Eighth Circuit has not ruled on at the appeals level, and in which cases have gone both ways in other trial courts. So it would seem to be ripe for clarification, and doing the clarification at this stage would make some sense as opposed to holding a second trial first before ruling whether the second trial was necessary.

Strategically, it also has the possibility of definitively burying the making-available theory if the Eighth Circuit rules against the RIAA on the point. I don't have a good read on the circuit to know what the odds of that outcome versus setting the wrong precedent are.

At best plaintiffs would get the appeals court to clarify the following:

1. Making available is not infringement.2. Distribution to MediaSentry alone can be infringement if other significant conditions are met. If defendant does a significant amount of something (whatever that means, and here we reference the video tape copying cases where employees in a video store picked out a tape for customers and used the VCR there to copy a tape for customers) in the process of making a copy for MediaSentry, defendant can be liable.

But jury instructions didn't have these standards, so the end result would be a new trial.

-if you want to help "Recording Industry vs. The People", buy stuff from our affiliate advertisers through the ads (we get a commission if you buy stuff through these ads)(if you don't see what you want, let me know by email or a comment, and I'll try to accommodate)

"If this does make it to the Appeals Court, is there anyway for a layperson to have some input or at least write to the Appeals Court in order to let them know our opinion?"

If you're just some dude, like me, your opinion doesn't matter. Judges don't care what we think, nor should they.

Anyway.

1. The Electronic Frontier Foundation has written amicus briefs for various copyright cases in the past, and surely they will in the future. So you could join them. Or another such group.

2. Don't forget other popular democratic methods, like writing letters to your elected officials or running for office yourself.

3. Keep up to date on the issues. If you notice something useful or interesting that defense attorneys in these cases haven't mentioned, leave an electronic comment somewhere. If Thomas's attorney had known of the precedent against the problematic jury instruction, the case wouldn't be like it is now.

I think some people got my comment wrong: certainly the original jury instruction was a manifest error of law, justifying a new trial. I think the judge got it right the second time around.

Finally, I'm sure this appeal will be thrown back: the judge got it right, and even if he didn't the standard for reversal is probably pretty high.

That said, there's a principle that you get to appeal once. Even though the RIAA are abusing the judicial process, our response should be to stand up for the correct process. I thus stand by my comment: for motions granting a new trial, the side that won the first trial should get to appeal before the new trial starts, and not after.

I am a business lawyer in New York City, practicing at Ray Beckerman, P.C.. The purpose of this site is to collect and share information about the wave of sham "copyright infringement" lawsuits started by four large record companies, and other areas of concern to digital online copyright law, and to internet law in general. -Ray Beckermanbeckermanlegal.com(Attorney Advertising)

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2." -Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove